Momentum Builds In Wisconsin for an In-State Solution to Partisan Gerrymandering

April 26, 2019 by Dan McCue

As Wisconsinites await the outcome of two partisan gerrymandering cases heard by the U.S. Supreme Court last month, momentum is growing for in-state resolution to a very similar controversy.

Earlier this month, three counties passed resolutions asking the state legislature to institute nonpartisan redistricting for state and congressional races.

With their county board votes, Buffalo, Fond du Lac and Iowa counties joined 42 others in asking state lawmakers to consign partisan mapmaking to history in Wisconsin.

Significantly, these 45 counties represent at least 74 percent of the state’s population. Only 27 counties have yet to weigh in on the issue.

In addition, a recent Marquette Law School poll found that 72 percent of voters say they would prefer the redrawing of legislative and congressional districts be done by a nonpartisan commission, while only 18 percent said they would leave the mapmaking up to the legislature and governor.

Majorities of voters identifying themselves with one political party or another favor a nonpartisan commission for redistricting, with 63 percent of Republicans, 83 percent of Democrats, and 76 percent of independents favoring the nonpartisan commission.

Meanwhile, only 27 percent of Republicans, 10 percent of Democrats, and 10 percent of independents favor keeping the current system.

Martin Farrell, chair of the Fond du Lac County Board of Supervisors, said the board had previously endorsed a Wisconsin Counties Association resolution calling for a nonpartisan process for redistricting, but that as the issue of partisan gerrymandering heated up in the state and elsewhere, “several supervisors felt strongly that we should pass a stand-alone resolution on the topic.”

Even then, the going wasn’t easy. A number of supervisors objected to the original wording of the resolution and a scheduled vote on it was postponed. The resolution was heavily amended, but it still didn’t appease some on the board.

Finally, “prior to our April meeting, an alternative resolution was formulated and brought forward by 10 supervisors,” Farrell said. “That version was approved by a vote of 22-1.”

The Fond du Lac County resolution states that redistricting at all levels of government should be based on procedures that do not include consideration of “voting patterns, party information, incumbent residence information, and/or demographic information that in any way significantly distorts the right of fair and equal representation.”

“Our Board members feel strongly about this matter and I have been contacted by several constituents urging us to take this stand,” Farrell said.

John Meyers, chair of the Iowa County Board of Supervisors, said his county’s resolution came about “at the request of a group of citizens.”

“We never polled the whole county, but we voted as we saw fit,” he said.

Issue Seen as Bipartisan Concern

Matt Rothschild, executive director of the Wisconsin Democracy Campaign, a non-profit coalition advocating for fair elections and other good government initiatives, said several individuals and organizations have contributed to sustaining the push against partisan gerrymandering in the state.

First among these is Hans Breitenmoser, a county board member in Lincoln County, Wisconsin, “who not only got his county to sign onto the resolution, but urged other counties, and the Wisconsin Counties Association, to climb on board,” Rothschild said.

Breitenmoser, a Democrat, introduced the gerrymander resolution in Lincoln County. His fellow board members passed it by an 18-to-4 vote on March 21, 2017.

After the issue caught fire in other counties, Breitenmoser joked during an interview with Wisconsin Public Radio that he was surprised. “Lincoln County isn’t necessarily a hotbed of liberalism,” he laughed.

Turning more serious he said fighting partisan gerrymandering is the perfect bipartisan issue because “my Republican colleagues understand gerrymandering could also hurt them.”

In short, he said, the temptation to gerrymander occurs where any political party has the upper hand.

“In Maryland and some other places [where Democrats are in control], the maps would make Wisconsin politicians blush. So, Republicans get that,” he said.

Last year, largely at Breitenmoser and Lincoln Counties urging, the Wisconsin Counties Association, the lobbying arm of the individual counties in Wisconsin, passed its own resolution in favor of nonpartisan redistricting.

In addition to the counties, there are a number of organizations that have also kept the issue alive in the state, including, in addition to the Wisconsin Democracy Campaign, Common Cause, Citizen Action, the Fair Elections Project, Wisconsin Voices, and the Fair Maps Coalition.

“It also came about, in part, by tremendous work at the grassroots from local organizers,” Rothschild said.

Driving them all, he said, “is the widespread sense that the political system is rigged.”

“Partisan gerrymandering is just a glaring example of that,” Rothschild said.

GOP Gerrymander at Center of Litigation

A group of Democratic Wisconsin voters have been trying for years to strike down a 2011 redistricting plan for the lower house of the state assembly. They claim the map is a partisan gerrymander that unfairly favors Republicans, and that it violates the First and 14th Amendments of the U.S. Constitution.

The voters in Gill v. Whitford actually won at trial in 2016. In ruling in the plaintiff’s favor, the court said the map created after the 2010 census was “an aggressive partisan gerrymander” that guaranteed a Republican majority would be elected to the state assembly under “any likely electoral scenario.”

Last year, Gill, along with Benisek v. Lamone, a Maryland case challenging a Democratic-favoring redrawing of congressional districts, made it all the way to the Supreme Court. The fear at the time among opponents of gerrymandering was that the justices would conclude partisan gerrymandering was an issue outside the court’s purview. But both cases ended inconclusively.

In Benisek, the justices said a lower court had erred on a matter of law and sent the case back for reconsideration. As for Gill, the high court remanded the case back to the federal court in Wisconsin to give the plaintiffs an opportunity to provide evidence that they had standing to challenge the district maps at all.

Rothschild noted that even with its being resolved at the time, Gill v. Whitford‘s trip to the Supreme Court and back garnered a lot of attention in the press in Wisconsin, stoking public interest in the issue.

In November 2018, the Maryland case took another turn, with a panel of federal judges concluding the state’s 6th Congressional District was drawn heavily in favor of Democrats. That decision triggered an automatic appeal to the U.S. Supreme Court.

In January, the justices agreed to hear the Maryland case for the second time, and also to hear a case out of North Carolina alleging gerrymandering by Republicans. Oral arguments in those cases were held last month.

Come the end in its term in June, the U.S. Supreme Court could establish the first limits on partisan politics in the drawing of electoral districts. However, the justice could ultimately decide that federal judges have no role in trying to police political mapmaking.

For the time-being, that means Wisconsin has been left on the sidelines of the legal battle. But as is evident from the numerous anti-gerrymandering resolutions being passed by counties across the state, opponents of partisan mapmaking in The Badger State have been far from idle.

Governor Budgets for Nonpartisan Work on District Maps

Governor Tony Evers, a Democrat elected in November, has even included money in his inaugural budget to have the state’s Legislative Reference Bureau, a nonpartisan legislative service agency that currently provides legal, research, and information services to the Wisconsin Legislature, draw the maps after the 2020 census.

The governor’s proposal is based on the method that Iowa has been using since 1980.

Under the Evers plan, the bureau would then submit its maps to the legislature for an up or down vote with no amendments. Response to the proposal at public hearings held around the state this winter was largely positive, mirroring the results of the Marquette Law School poll.

Despite this, Rothschild is somewhat pessimistic about the future of the governor’s proposal.

“I think it is extremely unlikely the legislature is going to move on this,” he said. “In fact, Assembly Speaker Robin Vos said a few weeks ago that ‘bureaucrats’ shouldn’t be allowed to draw the maps.”

Fond du Lac County’s Farrell also holds the view the Republican-controlled legislature will reject the governor’s redistricting proposal.

“In Wisconsin, the people who did the gerrymandering after the 2010 census still control the legislature and even deny that gerrymandering took place,” Farrell said.  “However, with a Democratic governor, there will have to be some sort of compromise on the post — 2020 redistricting, and perhaps the legislators will be more amenable to crafting a less partisan process at that time.  The movement is gaining momentum in a number of states.”

Then there’s the matter of the still unresolved Gill v. Whitford. The case was originally scheduled to be heard in a federal courtroom in Wisconsin this week, but after the Supreme Court added partisan gerrymandering to its docket for this term, the hearing was put off until July.

If the Supreme Court decides in a majority opinion that the Maryland and North Carolina districts are unconstitutional partisan gerrymanders and need to be redrawn, the three-judge panel in Wisconsin could simply follow suit after deciding Republicans who controlled the legislature in 2011 unlawfully drew voting district maps to favor the GOP, and order them redrawn in a nonpartisan fashion prior to the 2020 election.

If the high court issues an inconclusive ruling without a clear majority for either side of the issue, the federal court in Wisconsin could be left to resolve the issues that aren’t resolved in the various justices’ opinions.

Supervisor Farrell said he’s not hopeful about the outcome of the partisan gerrymandering cases the Supreme Court will decide in June.

“With the current conservative control of the U.S. Supreme Court, I doubt they will rule partisan gerrymandering unconstitutional,” he said. “The stated grounds will probably be based on judicial constraint concepts, with the background fact that it is currently conservative Republicans benefiting from most [from] the current gerrymandering.

“Another factor may be the real or alleged lack of a clear, universally — accepted measure of the degree of gerrymandering.  We passed our resolution simply to try to add to the momentum currently building to end this practice, regardless of which party is doing it,” Farrell said.

Rothschild was equally glum about the prospects of a Supreme Court ruling striking down partisan gerrymandering.

“I don’t believe the justices will rule that partisan gerrymandering is unconstitutional in the Maryland and North Carolina cases …  And so the Wisconsin case set to be heard in July is not likely to go well, either.

“All the more reason to keep building the grassroots pressure locally so that someday soon, legislators will have to obey the wishes of their constituents or risk being thrown out of office,” Rothschild said.

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